Two legal systems deal with conflict between SAFETY and Intellectual Property
Both safety organizations lack the competence to judge IP issues
Assume IP vs. SAFETY– RIGHT?
The economics of the aerospace industry are brutal. For a variety of reasons, the sale of aircraft or engine rarely recovers its fully allocated cost. Part of the pricing strategy for these high value items, carrying massive research and tooling expenses, is to extend the revenue streams by including some of that investment expense in the charges for replacement parts, the associated documents (manuals, drawings), proprietary tooling, etc.
The incremental cost of these after market items is well below the OEM’s sale price, that is, with reverse engineering and laser measurements, these products (not the manuals, drawings and documents; however, the Xerox machine can reduce those expenses).
The validity of these economics are not within the competence of safety regulators. Even more baffling to the FAA, other CAAs and here, the State Aviation Administration of Ukraine (державна авіаційна служба україни) is to determine the validity of Intellectual Property claims and defenses thereto.
In light of their lack of knowledge on these issues, both the US and the Ukraine have presumed that the OEM is entitled to preference. “If the claimant has valid legal claims, they should resolve them before a court.” Is the implied conclusion of these least worst policies.
AAR Airlift Group, Inc., of Palm Bay, Fla. holds an FAA certificate that allows it to conduct commuter and on-demand operations, according to the FAA. The press release alleges that “between February 16, 2016 and January 27, 2017, AAR Airlift failed to properly document the replacement of components on 13 Sikorsky S-61N helicopters.” Under the IP theme, the FAA asserts that “AAR did not at the time use or possess the special equipment necessary to properly replace the components. The components are hydraulic pistons that change the angle of the helicopters rotor blades in relation to the direction of the wind.”
The complaint extends beyond the MX problems and incorporates that “AAR Airlift operated the helicopters in violation of its operations specifications after it failed to use the required special equipment to replace the components. The flights occurred in Afghanistan, the Central African Republic, the Democratic Republic of the Congo, Niger and Uganda.”
The FAA states that these violations merit a civil penalty of $742,677. This is exceptional in light of the FAA’s adoption of a new Compliance Program which places emphasis on consensus and cooperation over dollars.
he second example of IP involves a contest between two socialist countries– Communist Cabinet of Ministers of Ukraine (Ukrainian: Кабінет Міністрів України)(the official name of that country) and Federal Air Transport Agency of Russia (Rosaviatsiya), part of the Communist government of Russia. The former subservient Socialist Republic asserts that Volga Dnper, a Russian state-owned cargo carrier, has committed a criminal offense under Part 2, Article 364 of the Criminal Code of Ukraine, on abuse of official position and forgery of documents for the prolongation of the airworthiness of An-124-100 aircraft Ruslan.”
In essence the Ukraine, more precisely a state-owned company, claims that it designed the AN Tu 204 and thus owns all the repair manuals, procedures and equipment.
ICAO has been brought into the dispute after the Communist Cabinet of Ministers of Ukraine lodged a complaint in Montreal. The UN agency’s website does not respond to research queries about this case.
Now a Ukrainian state court ,Podolsky District Court of Kiev, has affirmed its government’s IP claim and ordered the seizure of five An-124s operated by Volga-Dnepr Airlines (VI, Ulyanovsk Vostochny) for the alleged unauthorised maintenance checks performed by the Russian airline.
“According to Antonov Design Bureau (ADB, Gostomel), the investigators, and the court, the admission of the An-124 to the further operation is a violation of the provisions of the ICAO Convention on International Civil Aviation and Airworthiness Guidelines. The seizure of property is allowed in order to ensure the safety of physical evidence and compensation for damage caused by the crime,” said Roman Marchenko from the Ilyashev & Partners law firm, which represents the Ukrainian manufacturer.
[would require a VERY large Denver Boot]
The legal issues which surround this IP debate are difficult, but so, too, are the safety issues associated with the control of important airworthiness issues.
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